' RAJA MUHAMMAD KHURSHID KHAN, Act a. C. J.-Muhammad Qasim alias Bagga son of Abdul Latif, Gujjar by caste, resident of Haripur, Tehsil Haripur, District Abbottabad, through this appeal, by leave, seeks reversal of the order passed by a Division Bench of the High Court of Azad Jammu and Kashmir on 10th of June, 1982, whereby for the double murder of Mst. Habib-un-Nisa alias Khurshid Begum (his mother) and one Muhammad Bashir, said to be his uncle distantly, his sentence under section 302, Penal Code to life imprisonment alongwith a fine of Rs, 100 recorded by the learned Sessions Judge, Mirpur, on 19-12-:981, was maintained.
2. The material facts are these. Abdul Latif, the father of the appellant and the husband of Mst.
Khurshid &gum deceased, some 8110 months prior to the occurrence which took place on the night falling in between 5th and 6th of August, 1980, was out of Az-id Kashmir to Saudi Arabia to earn his livelihood. The prosecution case is that availing the a5sence of Abdui Latif, Muhammad Bashir, deceased, who was running a shop in Akalgarh in the vicinity of which Abdul Latif bad also hired a house and his wife and children were living therein. Developed illicit relations with Mst. Khurshid Begum. Ghulam Fatima, the sister of appellant smelt the foul play and made the appellant conscious of it. 1 he appellant then decided to keep a vigil to ascertain the reality.
3. 1 he appellant in those days was a pipe-fitter at Mirpur situated at a distance from Akalgarh and according to the prosecution he, during the night of 5/6th of August, 1980, stealthily reached his house during night boars and got on the roof of the house from the back wall and was surprised to find Muhammad Bashir coming out of the bed of his mother, Mst. Khurshid Begum. Both the deceased, Mst. Khurshid Begum and Muhammad Bashir, then went to sleep and availing the opportunity the appellant put them to death by inflicting 'chhuri' and stick inpries on their persons.
The two minor children of Mst. Khurshid Begun, namely, Muhammad Azam and Hashatn, present at the scene of occurrence, informed Yahya, P. W. About the incident who, in turn, went to Muhammad Amin, complainant, and told him all about the matter. Muhammad Amin, in the first instance, sent a telephonic message to the police. Before he arrival of the police he, however, along with Dr. Abdul Hamid, P. W., and some others, went to the spot and found the dead bodies of Mst. Khurshid Begum and Muhammad Bashir. According to 'the prosecution the appellant confessed his guilt before them and said that he committed the murders as his mother had illicit relations with Muhammad Bashir. The complainant then returned to his hotel at Akalgarh Bazar where he got his statement (Exb. P. A.) recorded by a Police Officer and a case against the appellant was thus registered at Police Station, Mirpur. It may be stated here that the doctor who performed the post-mortem examination on the bodies of the deceased, disowned the prosecution case so far the injuries by stick on the person of the deceased are concerned. He stated that all the injuries on the persons of the deceased were of sharp-edged weapon. 'The accused denied to have committed any offence.
4. The prosecution has examined the following witnesses in support of its case :- ' Muhammad Amin, P. W. 1, Mit. Ghulam Fatima, P. W. 2, Muhammad Azam, P. W. 3, Muhammad Hasham, P. W. 4, Muhammad Yahya, P. W. 5, Khan Malik, P. W. 6, Muhammad Khalil, P. W. 7, Liaqat Ali, P. W. 8, Dr. Abdul Hamid, P. W. 9, Nazar Khan, P. W. 10, Allah Rakha, P. W. 11, Nazir Hussain Shah, P. W. 12, Dr. Manz Jor Ahmed, Medical Specialist, P. W. 13, Raja Abdur Razaq Khan, P. W. 14, Muhammad Amin Shah, P. W. l5, Raja Muhammad Rashid, A. S. 1., P. W. 16, and Mirza Muhammad Amin, P. W.
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5. It may be stated that in this case, except Abdul Hamid, P. W. 9, Government officials, all other witness, including Muhammad Amin, complainant, do not support the prosecution case. They all, of course, were learned hostile and cross-examined but nothing has been brought out of ink evidence to connect the appellant with the deffence charged. They categorically disown any criminality on the part of the appellant in the occurrence.
6. We are thus left with the evidence against the appellant which consists of the following :- (i)Statement of Abdul Hamid, P. W. 9, who owns the prosecution case to the extent of the extra- judicial confession made by the appellant at the time he visited the spot :
(ii) The recovery of blood-stained clothes of the accused made in presence of Abdul Hamid ; and
(iii) Blood-stained `chhuri' and the stick recovered at the instance of the accused.
7. The learned Sessions Judge as well as the learned Judges in the High Court have based the finding of guilt of the appellant mainly on the above-stated grounds. S. The fate of this case, thus, would depend on the intrinsic value of the extra-judicial confession, recovery of blood-stained clothes of the accused scraping of which, as per chemical and serologist examination, were stained with human blood and the recovery of the blood-stained `chhuri' and stick effected at the instance of the accused.
9. While criticising the validity of the findings of the lower Courts, in the first instance, it was contended by Ch. Muhammad Riaz Akhtar, the learned counsel for the appellant, that the reports of the chemical examiner and serologist have no evidence in them as blood-stained clothes, `chhuri' and the stick were sent to them for examination practically one month after their recovery and this fact takes all evidence out of the reports referred to above. He further submitted that extra-judicial confession being weak type of evidence cannot be corroborated by the recoveries of blood- stained weapon and blood-stained clothes which is also a weak type of evidence. Concisely his case is that extra judicial confession as well as recoveries, both being weak pieces of evidence, cannot corroborate each other. In. Alternate it was submitted that even if the prosecution story is believed to be correct it is a clear case of grave and sudden provocation falling under section 304, Part I of the Penal Code and the conviction under section 302, Penal Code, cannot sustain. He submitted that the appellant deserves lenient treatment in matter of sentence.
10. We take up the first point. The clothes, shirt and shalwar, which the accused was wearing at the time of occurrence, have been found to be blood-stained by the chemical examiner vide his report Exh. P. R. Similarly 'chhuri' the weapon of offence, was also found stained with human blood by the serologist. The accused, in his statement under section 342, Cr. P. C. Admits that the clothes were seized from his person.
11. It would be proper here to reproduce the relevant portion of the statement of Abdul Hamid, P. W., which runs as under : {{URDU TEXT}} 12.Ordinarily the lapse of the police not to send the articles confiscated, with quick dispatch to the chemical examiner and serologist may have been fatal to the prosecution but in the circumstances of the case when the appellant had immediately after the occurrence made the confessional statement before Abdul Hamid, P. W., voluntarily, which we believe is correct and which owns killing of the deceased, the negligence of the police would not detract the value of the report of the serologist and chemical examiner. Abdul Hamid, it is to be observed, is an independent witness and has no motive to implicate the appellant in the case falsely. He being a disinterested person, there appears no reason to doubt his veracity.
13. It would appear that the extra-judicial confession referred to above has been fully testified by the circumstantial evidence which is furnished by the prosecution in the shape of blood-stained clothes of the appellant and blood-stained weapon of offence, i. e., `chhurr. We, therefore, feel safe to hold that the prosecution has fully proved that it was the appellant and none else who had killed the deceased.
14. This brings us to determine the nature of the offence. The learned counsel for the appellant submitted that on the evidence the only inference that can be drawn is: that the appellant had committed the act under grave and sudden provocation and the offence falls under section 304, Part I, Penal Code and not under section 302, Penal Code.
15. The argument has substance. The extra judicial confession made to Abdul Hamid, P. W., it may be observed, does not own the prosecution story on the point that the appellant kept waiting to do away with the lives of the deceased till they went to sleep. All that it conveys is that the appellant had done away with the lives of the deceased for their illicit relations with each other. The confession does not provide any further details.
16. What do we mean by 'sudden and grave provocation'? Provocation is in fact the state of mind in which a person is placed under circumstances. Experience tells us that there can never be any direct evidence as to what was the psychological effect of the provocation upon the mind of a person in certain circumstances. The state of mind of such a person is to be gathered in the circumstances of a given case. So was held in Penchant v. Emperor (1). In this country of ours there are social groups ranging from lowest to the highest state of civilization. For this reason it would not be desirable to lay down any standard with precision. It is for the Court to decide in each case having regard to the relevant circumstances. K. M. Nanavati v. State of Maharashtra (2) may be referred to support our view-point. Therefore, in arriving at the decision upon this question of fact no abstract standard can be laid. Down. The resolution of such a question depends upon the customs, manners, way of life, traditional value of the class or tribe to which a person belongs. So the cultural, social and emotional background of the society to which a person belongs had to be taken into consideration while deciding the question.
17. Whenever it is to be determined as to whether an accused has acted under grave and sudden provocation the simple question before the Court is: would a normal person be able to control himself if similarly provoked and did the accused in killing the deceased react like a normal person? Thus the test is not the conduct of the reasonable man but the impulses and frailties of the normal man who is likely to react in similar circumstances.
18. In a nutshell in construing the applicability of Exception I to section 300, Penal Code (grave and sudden provocation) determining factor! {{FOOT NOTE}}
(1) AIR. 1947 Oudh 148 (2) AIR 1962 SC 605 {{FOOT NOTE}} has always been whether the provocation given is sudden as well as grave enough to be an extenuation for the offence. It is an effect of the provocation upon the person provoked and probability of its producing a similar effect upon presort of similar class, which is always considered as material consideration for attracting this exception. It would depend upon the mental set up of each individual, his environments and family traditions in which-he was brought up.
19. While taking into consideration the observations made above regarding grave and sudden provocation, in the instant case, in our best judgment, the appellant has acted under grave and sudden provocation. Our conclusion rests on the following grounds :-
(i) It is even the prosecution case that the appellant has seen Muhammad Bashir, deceased, coming out of the bed of his mother, Mst. Khurshid Begum. Can a son finding a man sharing the bed of his mother be said to have not been gravely and suddenly provoked to do away with the lives of such persons. We entertain no doubt about it that in such situation the son who dealt with a way in which it is done in the present case. The appellant, in our view, especially in the circumstances when there is no evidence to the contrary, finding his mother and Muhammad Bashir in a nasty way, had attacked and killed the deceased at the spur of the moment under most compelling circumstances. Naturally the offence does not fall under section 302, Penal Code.
(ii) In criminal cases every benefit of doubt, it is elementary principle of law, goes to the accused.
Therefore, if the examination of the extra judicial confession referred to above can in any way be interpreted to favour the appellant, it would be the legal demand to do so. The confession does not say that the accused waited to do away with the lives of the deceased till they went to sleep.
Therefore, giving benefit of this omission to the appellant it would be said that he, under the impulse of grave and sudden provocation killed the deceased immediately after seeing them in an objectionable posture.
(iii) The site plan prepared by the Patwari enters that the dead body of Muhammad Bashir was found near the outer door of the compound wall, The blood was also found there. This place, it is significant, is at a considerable distance from the `charpais' of Mst. Khurshid Begum and Muhammad Bashir. If Muhammad Bashir 'would have been killed during the sleep probably he would have no time to run away to save himself. This factor also lands circumstantial support to our conclusion that the appellant killed the deceased immediately he saw him coming out of the bed of his mother.
(iv) Similarly Mst. Khurshid Begum, the site plan enters, ran away to the kitchen wherefrom she was brought out by the appellant and killed outside the kitchen. It appears that on seeing Muhammad Bashir coming out of the bed of his mother the appellant pounced upon Muhammad Bashir who, to save himself, tried to run out of the house but was caught near the compound wall and done to death. It also appears that during the time the appellant was settling his score with Muhammad Bashir. Mst. Khurshid Begum, the mother of the appellant, hurried to kitchen to save herself but the appellant, after doing away with the life of Muhammad Bashir, brought her out of kitchen and punished her to death for her misdeeds.
' For the above-stated reasons we are of the considered opinion that if there is any case of grave and sudden provocation the present is one of them.
20. In this case, it may be argued that the accused has not pleaded grave and sudden provocation and, therefore, benefit of this provision cannot be extended to him. This proposition has no footing.
If a grave and sudden provocation spells out of the evidence it would be given due consideration irrespective of the fact as to whether such a plea has been taken or not.
21. Before parting with the case we may state here that there was nothing wrong in Muhammad Qasim seeking an opportunity to catch his mother and Muhammad Bashir together and from this it cannot, as submitted by the learned Advocate-General, be inferred that he was seeking provocation for committing the murder. We feel that the appellant has committed the murders of two persons under compelling reasons.
' For the above-stated reasons while acre! Ling the appeal we convert the sentence awarded to the appellant from section 302, Penal Code to section 304 Part I; Penal Code and feel advised to award only a nominal sentence. We, therefore, reduce the sentence to already undergone which comes to more than two years. This much sentence would meet the ends of justice. The appeal is disposed of in the manner indicated above. The appellant shall be released forthwith if not wanted in any other case.
Appeal accepted